Garris v. Commercial Credit Co
| Decision Date | 29 March 1929 |
| Docket Number | (No. 12622.) |
| Citation | 147 S.E. 601 |
| Parties | GARRIS v. COMMERCIAL CREDIT CO. et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Bamberg County; J. Henry Johnson, Judge.
Action by C. W. Garris, trustee, against the Commercial Credit Company and another. From the judgment, defendant J. A. Hartzog appeals. Reversed and rendered.
E. II. Henderson, of Bamberg, and R. C. Hardwick, of Denmark, S. C, for appellant.
J. Wesley Crum, of Denmark, S. C, for plaintiff,
Benet, Shand & McGowan, of Columbia, and Wolfe & Berry, of Orangeburg, for respondent.
This action by the plaintiff, C. W. Garris, as trustee in bankruptcy of C. A. Asendorf, bankrupt, against the defendants, Commercial Credit Company and J. A. Hartzog, was commenced in the court of common pleas for Bamberg county, September 29, 1926, alleging that three automobiles were wrongfully taken and carried away by the defendant Commercial Credit Company to the damage of the plaintiff in the sum of $4,704, and the defendant Hartzog was made a party for the reason, as alleged in the complaint, that he claimed an interest in the automobiles in question. The defendant Commercial Credit Company, in its answer, alleged that it seized the three automobiles by virtue of trust receipts it held on them. The defendant Hartzog, in his answer, alleged that two of the automobiles in question were covered by a chattel mortgage held by him, and that he had been damaged by the impairment of the security; the amount of damages involved, as alleged by Hartzog, being the value of two automobiles covered by the chattel mortgage held by him.
The action came on for trial at the May, 1927, term of court of common pleas for Bamberg county, before Hon. J. Henry Johnson, circuit judge, and a jury. At the conclusion of the testimony, all parties to the cause moved for a direction of a verdict. His honor, Judge Johnson, refused the motion of the plaintiff and also of the defendant Hartzog, but granted the motion of the defendant Commercial Credit Company. From the entry of judgment on the verdict directed, the defendant Hartzog has appealed to this court, imputing error as set forth under the several exceptions, to which we shall hereinafter advert. The plaintiff did not appeal.
The facts in the case pertinent to the questions involved in the appeal, briefly stated, are as follows:
C. A. Asendorf, a resident of the town of Denmark, county of Bamberg, was engaged in business at the said town of Denmark, and also operated a place of business at the town of Orangeburg, county of Orangeburg; the business at each of these places being conducted by C. A. Asendorf under the tradename of Asendorf Motor Company, but controlled and owned solely by C. A. Asendorf. On the 16th day of February, 1926, a representative of the defendant Commercial Credit Company, seized and carried away from the said place of business of C. A. Asendorf, at Orangeburg, for the said Commercial Credit Company, the three automobiles named in the complaint, by virtue of certain trust receipts, which, under the laws of this state, are treated as chattel mortgages. It appears that these automobiles were received from the Knox-Gaines Motor Company of Columbia, S. C, and by agreement the Commercial Credit Company held the trust receipts, or chattel mortgages referred to above, and it was the contention of the representative of the Commercial Credit Company, who testified in the case, that he took possession of the automobiles for the Commercial Credit Company, repossessed them for the company as he stated, because Mr. Asendorf "had violated his trust agreement when he moved a car off of the floor." There are only two of the automobiles involved in this appeal, a four-cylinder Chrysler coach and a four-cylinder Chrysler touring car. The trust receipt covering the four-cylinder Chrysler coach was recorded in Orangeburg county, and the trust receipt covering the four-cylinder Chrysler touring car, if recorded at all, was recorded in the county of Richland. The trust receipt covering the four coach was dated December 12, 1925, and recorded in Orangeburg county December 24, 1925; and the trust receipt covering the touring car was dated January 7, 1926. The receipt, which is printed in the record, does not show when or where it was recorded, but on motion for direction of a verdict reference was made by counsel for Commercial Credit Company to the paper having been recorded in Richland county. At the time of seizing the four coach and touring car by the Commercial Credit Company, the representative of that company also seized a six-cylinder coach, but the defendant Hartzog made no claim to that car.
The note in the sum of $4,000 and chattel mortgage executed by C. A. Asendorf to the defendant J. A. Hartzog, and held by J. A. Hartzog, under which he claims, are dated January 12, 1926, and the mortgage was recorded in the office of the clerk of court for Bamberg county January 19, 1926. This mortgage covers certain machinery and "three new Chrysler automobiles at Denmark and Orangeburg, S. C." The evidence is that Mr. Asendorf at the time of the execution of this mortgage had three, and only three, new Chrysler automobiles at the place named, namely, a four-cylinder Chrysler coach, serial No. WR-666-H, motor No. 6S581; a four-cylinder Chrysler touring car, serial No. WR-638-Y, Motor No. 73451; and a model 70 Chrysler roadster, serial No. WL-793-E, motor No. G-101050. The last-named car, the roadster, and the tools and machinery covered by the mortgage were taken into possession by Hartzog and sold, and the proceeds of the sale, $1,239.26, credited on the debt, leaving a balance owing thereon of $2,760.74. It further appears from the evidence that the two automobiles seized by the Commercial Credit Company and claimed by Hartzog had a value of $2,43S, and it is the contention of Hartzog that he is entitled to judgment against the Commercial Credit Company for that sum. Mr. Asendorf was duly adjudicated a bankrupt February 26, 1926, and thereafter C. W. Garris was duly appointed trustee for said bankrupt.
As stated above, at the conclusion of the testimony, motions for direction of a verdict were made by all parties. The motion of the plaintiff and the motion of the defendant Hartzog were refused, and the motion of the defendant Commercial Credit Company wasgranted, as against the plaintiff and against the defendant Hartzog. The plaintiff did not appeal, and the issue before this court is between the Commercial Credit Company and Hartzog. His honor, Judge Johnson, granted the motion of the Commercial Credit Company against Hartzog for direction of verdict upon the ground "of vague and indefinite description" of the property in question, and it is from this holding and ruling that the defendant Hartzog appeals, as well as from the refusal to direct a verdict for him against the Commercial Credit Company for the amount asked for, $2,438, the value of the two automobiles, seized by the Commercial Credit Company which Hartzog claimed under his chattel mortgage.
Section 5312, vol. 3, of the Code of 1922, with amendments thereto, requires that chattel mortgage must be recorded in the county where the owner of the property contained in the mortgage resides. Since it is undisputed that Asendorf, the mortgagor, at the time he executed the chattel mortgages in question, the mortgage to Hartzog and the trust receipts to Commercial Credit Company, resided in the county of Bamberg, 'Bamberg county was the county where the said papers should have been recorded. The Commercial Credit Company did not record its papers in Bamberg county, and the recording of the same in Orangeburg county or Richland county was not a compliance with the law and did not furnish the defendant Hartzog constructive notice; whereas the recording of the Hartzog paper in Bamberg county, which is an undisputed fact, was a compliance with the law. The fact that C. A. Asendorf was doing business under the trade-name of Asendorf Motor Company and the trust receipts were signed, "Asendorf Motor Company, " by C. A. Asendorf, does not affect the legal status or requirement. The Asendorf Motor Company was not a corporation, was not a partnership, but simply a trade-name under which C. A. Asendorf was doing business, and he was in control of said business and was sole owner of the same. The residence of Asendorf was in Bamberg county, and therefore Bamberg county was the county in which the law required the papers in question to be recorded; and the fact that Asendorf had two places of business, one in Bamberg county and another in Orangeburg county, did not change his place of residence, and could not effect the requirement of the law as to where the papers should be recorded.
As to the description of the property covered by the Hartzog mortgage, in our opinion the same was sufficient to put third parties on notice, which, if followed up, would have disclosed the property intended to be covered by the mortgage, which is a sufficient compliance, as we understand the rule.
It is contended by the respondent that the decision by this court in the recent case of Bank of Williston v. Gamble, 148 S. C. 49, 145 S. E. 620, filed November 7, 1928, is conclusive of this question. We are unable to agree with this contention. As we view the facts involved in the two cases, there are broad distinctions between the case of Bank of Williston v. Gamble and the case at bar. All the description that the mortgage in the Williston Bank Case contained with reference to the property in question was "(35) mules, " whereas, in the case at bar, there are several descriptive words or phrases that aid in designating the property in question, to wit, "three new Chrysler automobiles at Denmark and Orangeburg, S. C." For the description in the case at bar to be similar to that in the Williston Bank Case, it should read, "3 automobiles." But instead we have...
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